Facebook Pulls Photo Of Two Men Kissing

People are very quick to call something censorship that’s actually part of a pre-emptive legal strategy to avoid obscenity lawsuits. That kind of outcry surrounds Facebook pulling a very chaste photo of two men kissing — an event page created in protest has accumulated about 24,343 people as attendees as of this update.

Ironically, Facebook is getting mislabeled as homophobic when we know that the site is pretty consistently pro-gay. This photo originally went up as part of a same-sex kiss organized to protest a homophobic pub in the U.K. (We love getting invited to those!), and apparently the event page got yanked along with the photo.

The bigger point is that people are calling a single instance an act of homophobia when we know Facebook isn’t categorically homophobic — nor inherently prudish, for that matter — but all it takes is one prudish and homophobic prosecutor with too much free time on his or her hands to decide to sue for obscenity. These lawsuits can get expensive and engender really bad publicity.

U.S. law leaves the definition of obscentity to community standards, so when a prosecutor living in a part of the country known to have conservative community standards sues — well, it’s much easier to fend off one of these suits if the plaintiff were based near Facebook in Silicon Valley. Unfortunately, these suits tend to originate in conservative jurisdictions, so inhouse attorneys advise websites to aim for the most conservative standards when filtering out content.

Of course, this isn’t spelled out in the site’s Statement of Rights and Responsibilities — if Facebook did do that, it would further arm more litigants than the social network already has to fend off. I see it as rather unfortunate that so many people are going to misread the pulling of this content as an act of homophobia by the social network, which doesn’t help things.

Readers, can you think of a better solution to these types of situations that look like censorship but actually involve more complicated legal decisions? How can the social network placate both ‘phobes and ‘philes alike?

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